Executive Summary
In times of war or threats to national security, the delicate
balance we strive to achieve as a nation between liberty
and security inevitably tips towards security, and civil
liberties tend to be compromised. In the aftermath of the
horrific events of September 11, 2001, our leaders have begun
exercising extraordinary powers to ensure our collective safety,
sacrificing the personal liberties of some, particularly
immigrants, in the process. Using invigorated surveillance and
enforcement powers to promote homeland security, President Bush,
Congress, and the Justice Department have selectively targeted
and indefinitely detained significant numbers of Muslim, Middle
Eastern, and South Asian non-citizen males living in the United
States, stripping them of the most basic and fundamental due
process protections. This increased scrutiny has caused
significant apprehension among other immigrants, too.

There is no denying that the terrorist threat we face is grave
and that methods need to be devised to protect us from harm.
However, history teaches us that ill-conceived government
policies during wartime, such as unfairly targeting certain
persons because of their race, national origin, or religious
beliefs, does not make us safer. Instead, it weakens our core
values and alienates allies who can help us fight terrorism.
Despite President Bush's soothing words urging Americans to be
tolerant and to distinguish between immigrants and terrorists,
Muslim, Arab, and South Asian men living in the United States
were victimized in the weeks following the attacks,
NOTE 2
and the Bush Administration has pursued enforcement policies
founded on religious, racial and ethnic profiling.

While there have been a number of dark periods in the last
hundred years when our prejudice clouded our reason, and our
hysteria and fear fueled division rather than unity - from the
Palmer raids in 1920 to the spying and blacklisting during the
Cold War - none is more glaring and a source of greater shame
than the internment from 1942 to 1946 of 120,000 persons of
Japanese ancestry living in California, Washington, and Oregon.
Nevertheless, here we are, a mere sixty years later, equating
ethnicity and religion with collective guilt, dispensing with the
need for individualized suspicion of wrongdoing, engaging in
secret detentions, and abrogating the civil liberties of those
detained.

Early court decisions have weighed in on the side of liberty,
but history tells us it is too early to tell whether the Supreme
Court will allow this overreaching by government in the aftermath
of September 11 th to stand. Neither Congress nor the judiciary
objected to the internment measures taken during World
War II. Rather, they paid deference to the government's asserted
need to curtail the liberties of people of Japanese ancestry and
failed to scrutinize the basis for this alleged military
necessity. It took nearly thirty years for a formal apology to
be issued to those interned.
NOTE 3
Our traditional system of checks and balances failed us then, and
it could fail us again.

Chief Justice William Rehnquist, in his 1998 book All the
Laws But One: Civil Liberties in Wartime, argues that
historically presidents have pushed the limits of their legal
authority during wartime, restricting civil liberties more than
in peacetime. And he sees the trend continuing.
NOTE 4
In a similar vein, Harvard Law School Professor Christopher Edley
points out that the odds are stacked against vocal criticism of
wartime excesses: wartime courts usually ratify security measures
adopted by the political branches; oversight by Congress is
unlikely to be potent; and the public can only denounce what it
knows about. The way the war on terror is shaping up, there is
much that the public will never know about and thus be unable to
decry.
NOTE 5
It remains to be seen whether the Supreme Court will fight this
inexorable tendency or whether history will proclaim this period
another sorry chapter in the unfolding of our national story. In
anticipation of these inevitable cycles of civil liberties
erosion, should institutional mechanisms be set in motion to
better protect our individual rights in times of national crisis?

We hope that by revisiting the grievous errors committed
by our political leaders and Supreme Court justices in the 1940s,
and by contrasting those errors with more recent yet reminiscent
measures adopted since September 11th, that policymakers will
work harder to avoid repeating the mistakes of history.

INSTITUTIONAL GUILT: THE INTERNMENT OF JAPANESE
AMERICANS

War with Japan Unleashes Hysteria and Mass
Detentions

On December 8, 1941, one day after the bombing of Pearl
Harbor by Japan, the United States declared war on Japan.
President Roosevelt issued Executive Order No. 9066 on February
19, 1942,
NOTE 6
authorizing the Secretary of War and certain military
commanders "to prescribe military areas from which any persons
may be excluded as protection against espionage and sabotage."
With this broad authorization to banish from military areas
anyone deemed dangerous to the national defense began
the largest deprivation of liberty in United States history - the
imprisonment in desolate internment camps,
NOTE 7
without individual trials or hearings, of 120,000 Americans
NOTE 8
and permanent residents who, by virtue of their Japanese
ancestry, contained "enemy race" blood, including women, children
and the elderly.

The military applied the Order selectively and en masse to
residents of Japanese origin. The political leadership at the
time ascribed to the view that residents of Japanese descent were
incapable of true assimilation and therefore inherently disloyal.
The fact that the detainees then living on the West coast of the
United States had emigrated from Japan out of choice and had made
their lives there for sixty years
NOTE 9
was ignored, along with the need for any individualized evidence
of wrongdoing to justify relocation and detention. In the end, no
persons of Japanese ancestry residing in the United States were
ever charged or convicted of espionage or sabotage, greatly
undermining the credibility of those who used race as a lens
through which to view national security matters.

All Branches of Government Supported Internment

All branches of government legally sanctioned this wholesale
deprivation of fundamental constitutional rights and civil
liberties. Congress ratified Executive Order 9066 in March of
1942,
NOTE 10
the military continued to issue proclamations pursuant
to the Executive Order,
NOTE 11
and the Supreme Court upheld the evacuation and internment of
both citizens and permanent residents of Japanese ancestry in a
series of cases decided in 1943 and 1944. Two of those cases in
particular, Hirabayashi v. United States and Korematsu
v. United States, provide great insight into the wartime
mentality prevalent at the time and still resonate today as we
struggle with racial stereotyping and deprivations of rights in
the aftermath of September 11th.

Gordon Hirabayashi, an American citizen, was living in Seattle
in 1942 and was subject to the wartime orders requiring all
persons of Japanese ancestry, whether citizen or not, to observe
a curfew and report for processing in connection with exclusion
from the military area. Hirabayashi refused to honor the curfew
or to report to the control station because he believed that the
military orders were racist and unconstitutional. The Supreme
Court in Hirabayashi v. United States unanimously affirmed
his conviction, and accepted the government's position that the
curfew was justified by military assessments of emergency
conditions existing at that time.
NOTE 12
Chief Justice Stone gave credence to the military's viewpoint
that citizens of Japanese descent would have a great attachment
to the Japanese enemy, observing that the Japanese who had come
to the United States had not assimilated with the "white
population." Ironically, he also acknowledged that federal
legislation had denied them the means to obtain citizenship by
naturalization.

The following year, a majority in a sharply divided Supreme
Court in Korematsu v. United States applied the same
military emergency rationale to uphold the exclusion of all
citizens of Japanese ancestry from the West Coast.
NOTE 13
Justice Black's majority opinion supported the exclusion, relying
on the military's judgment that threats of invasion, espionage
and sabotage existed and constituted "military necessity" for
exclusion, while ignoring the fact that Imperial Japan was
unlikely to be able to attack the West Coast after the defeat of
Japan's navy at the Battle of the Midway in June 1942.

By failing to question the military's basis for reliance on
stereotyping in lieu of individualized investigations, Justice
Black sidestepped the race issue entirely.

"It is said that we are dealing here with the case
of imprisonment of a citizen in a concentration camp solely
because of his ancestry, without evidence or inquiry concerning
his loyalty and good disposition towards the United States. Our
task would be simple, our duty clear, were this a case involving
the imprisonment of a loyal citizen in a concentration camp
because of racial prejudice. Regardless of the true nature of the
assembly and relocation centers -- and we deem it unjustifiable
to call them concentration camps with all the ugly connotations
that term implies -- we are dealing specifically with nothing but
an exclusion order. To cast this case into outlines of racial
prejudice, without reference to the real military dangers
that were presented, merely confuses the issue.

Korematsu was not excluded from the Military Area because
of hostility to him or his race. He was excluded because we are
at war with the Japanese Empire, because the properly constituted
military authorities feared an invasion of our West Coast
and felt constrained to take proper security measures, because
they decided that the military urgency of the situation demanded
that all citizens of Japanese ancestry be segregated from the
West Coast temporarily, and finally, because Congress, reposing
its confidence in this time of war in our military leaders --
as inevitably it must -- determined that they should have the
power to do just this. There was evidence of disloyalty on the
part of some, the military authorities considered that the need
for action was great, and time was short. We cannot -- by
availing ourselves of the calm perspective of hindsight -- now
say that at that at time these actions were unjustified."
NOTE 14

In his dissent, Justice Murphy characterized the majority
opinion as legalized racism and attacked the questionable
qualification of military experts to make ethnic and sociological
value judgments regarding the effects of racial ancestry. Murphy
further argued that the eleven months spent to evacuate Japanese
Americans was ample time to implement an orderly inquiry into
the loyalty of those evacuated. As was later revealed, the
Western Defense Command did in fact have enough time to determine
loyalty but chose not to because of racist beliefs. Government
officials and attorneys withheld this evidence from the federal
courts.

Justice Jackson, in his powerful dissent, warned of the
dangers of unquestioned judicial deference in times of crisis,
deference that weakens our constitutional protections and the
very fabric of our society.

"Much is said of the danger to liberty from the
Army program for deporting and detaining these citizens of
Japanese extraction. But a judicial construction of the due
process clause that will sustain this order is [a] far more
subtle blow to liberty than the promulgation of the order itself.
A military order, however unconstitutional, is not apt to last
longer than the military emergency. Even during that period a
succeeding commander may revoke it all. But once a judicial
opinion rationalizes an order to show that it conforms to the
Constitution, or rationalizes the Constitution to show that the
Constitution sanctions such an order, the Court for all time has
validated the principle of racial discrimination ...The principle
then lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent
need... A military commander may overstep the bounds of
constitutionality, and it is an incident. But if we review and
approve, that passing incident becomes the doctrine of the
Constitution..."
NOTE 15

Detention Finally Ends

The Supreme Court did reach the detention issue but did
not reach the constitutional issue. Mitsuye Endo, a U.S. citizen
who obeyed the exclusion order, asserted her loyalty, and
challenged her continued detention.
NOTE 15A
After her arrival at camp, she filed a petition for a writ of habeas
corpus demanding her release in July 1942. Almost two and half years
later, the U.S. Supreme Court ordered her belated release from the
camp at Tule Lake, California. Because of her loyalty, she could not
be subjected to an harassing leave procedure that amounted to an
indefinite detention of a loyal citizen against her will.

Justice Douglas spoke for the majority and found that the
War Relocation Authority (WRA), a civilian agency responsible
for operating the camps, exceeded its authority granted by the
Congressional Act of March 21, 1942 (Public Law 77-503) and
Executive Orders 9066 and 9102 (which established the WRA).
Justice Murphy concurred and labeled the detention of citizens
as another unconstitutional form of racism inherent to the WRA
evacuation program. Justice Roberts concurred in the result but
not with this rationale. Although Congress did not appropriate
a specific budget item for detention, both branches of government
had detailed knowledge of the en masse detention and thus
are responsible. He wanted the Court to face Endo's detention
as a constitutional issue.

The Harsh Indictment of History

The Hirabayashi and Korematsu decisions have
never held an honored place in our history. Although never
overruled, they have been criticized by journalists, historians
and scholars for not critically assessing the emergency at the
time and for upholding the racial prejudice inherent in General
DeWitt's orders.
NOTE 16
A presidential apology would not be issued until 1976 and a
commission created by Congress to investigate the internment
until 1980.
NOTE 17
Eight years later, Congress also passed the Civil
Liberties Act of 1988, popularly known as the Japanese American
Redress Bill, which formally apologized for the camps, mandated
the establishment of a trust fund for educational and
humanitarian purposes, and provided compensation for 60,000
surviving Japanese American citizens and resident aliens who
were interned. The reparations period ended in 1998.

Eventually, both Mr. Korematsu and Mr. Hirabayashi were
able to vacate their convictions in 1984 and 1987 respectively,
based on evidence not available at their original trials but
later found in the government's own files.
NOTE 18
This new evidence, amassed during the investigation conducted by
the Commission on Wartime Relocation and Internment of Civilians,
established that the government had engaged in misconduct by
destroying the original DeWitt Final Report, altering the text of
government briefs, and suppressing intelligence reports.

The Commission concluded that there was substantial credible
evidence from a number of federal civilian and military agencies
contradicting the Final Report of General Dewitt, Final Report:
Japanese Evacuation from the West Coast 1942, and its premise
that military necessity justified exclusion and internment of all
persons of Japanese ancestry without regard to individual
identification of those who may have potentially been disloyal.
NOTE 19
The original version of the report did not purport to rest on any
military exigency, but instead rested on the assumption that it
would be impossible to separate the loyal from the disloyal
because of traits peculiar to citizens of Japanese ancestry, and
that all would have to be evacuated for the duration of the war.
NOTE 20
The Supreme Court, in upholding the conviction in 1943, had
deferred to the government's military necessity arguments, based
on DeWitt's final but doctored report.
NOTE 21

The Commission on Wartime Relocation and Internment of
Civilians found that "broad historical causes which shaped these
decisions [exclusion and detention] were race prejudice, war
hysteria and a failure of political leadership" and that, as a
result, "a grave injustice was done to American citizens and
resident aliens of Japanese ancestry who, without individual
review or any probative evidence against them, were excluded,
removed and detained by the United States during World War II."
NOTE 22

The Supreme Court's deference to the judgment of the military
and exercise of judicial restraint were tantamount to total
abdication of its role in the face of very serious constitutional
issues affecting the lives of an entire racial minority. By
applying strict scrutiny and upholding the racial classification,
the Court permitted a harsh discriminatory result based on racial
ancestry to stand, just as Justice Jackson warned in his
Korematsu dissent. Will the Court make that mistake again
when it reviews the actions taken by the government in combating
terrorism after September 11th?

MORE COLLECTIVE GUILT: DETENTIONS OF ARABS AND
MUSLIMS

Secrecy, Indefinite Detention, and Racial Stereotyping

After Pearl Harbor, the Roosevelt administration implemented
policies that blatantly resulted in the exclusion of people
of Japanese ancestry. Admittedly, no such policy aimed to exclude
has been aimed directly at a nationality in the aftermath of
the September 11 th attacks. Yet, despite commendable rhetoric
by President Bush warning against intolerance of and violence
against Arab Americans and Muslims living in the United States,
his administration has implemented policies that fly in the face
of his admonitions. In fact, since September 11, 2001, the
Department of Justice, under Attorney General John Ashcroft, has
arrested, detained and, in some cases, deported, over 1,200
people with Arab or Muslim backgrounds under a veil of complete
secrecy.
NOTE 23
Not even the names of those arrested have been released to date.

The adoption by the Justice Department of regulations and
policies that make it easier to detain non-citizens indefinitely
and deport them was a response to the fact that the nineteen
alleged 9/11 hijackers were all men, citizens of Middle Eastern
nations, living in the U.S. on temporary visas or as visa
overstays prior to the attacks. Although on their face the new
regulations are not directed at any particular nationality, the
Department of Justice, largely through the Immigration and
Naturalization Service, has used these expanded powers to
selectively focus its investigations on persons of Arab, South
Asian or Muslim backgrounds.
NOTE 24
A report by Human Rights Watch released in August 2002 documents
that most of the arrests were made because of the person's
nationality and religion. According to this report, not a single
person who has been arrested has been linked to the terrorist
attacks of September 11.

The use of racial and religious profiling as a national
security weapon has been tried before. It was unsuccessful during
World War II - none of the interned U.S. residents of Japanese
ancestry were ever charged with sabotage or espionage - and it
is just as likely to be unsuccessful now.

The Bush Administration's Counterproductive Enforcement
Blitz

Over the last year, the Justice Department has announced a
series of enforcement initiatives that selectively target Arabs,
South Asians and Muslims living in the United States and deprive
them of the most basic due process protections. These measures
have not only failed to improve our national security, but have
antagonized the very immigrant communities who are in the best
position to assist the government in rooting out terrorism.

A mere nine days after the attacks, the Justice Department
amended existing regulations to increase from one to two days
the time the Immigration and Naturalization Service can detain
a non-citizen without filing charges,
NOTE 25
and allow for the extension of this period for an unspecified
"reasonable" additional time in the event of an emergency or
other extraordinary circumstances.

After this rule took effect, there were reported instances
of delays in charging non-citizens with immigration violations.
NOTE 26
A day later, on September 21st, Chief Immigration Judge Michael
Creppy, at the direction of the Attorney General, issued a
directive to all immigration judges ordering that in certain
"special interest" cases, which were not defined, "(t)he
courtroom must be closed... no visitors, no family, and no
press." "This restriction," the directive continues, "includes
confirming or denying whether such a case is on the docket." An
INS rule prohibiting public disclosure by any facility, whether
public or private, of any information regarding detainees only
heightened the extraordinary secrecy already surrounding all of
these proceedings.
NOTE 27
It is estimated that over 1,200 non-citizens, mostly from
Pakistan, Egypt and Yemen, have been incarcerated in these
special interest cases.

Just over a month later, the Justice Department promulgated
a regulation permitting INS prosecuting attorneys to override
the decision of an immigration judge to release a non-citizen on
bond when the INS sets bond at $10,000 or more.
NOTE 28
Thus, if the INS does not like an immigration judge's decision,
it need only file a notice that it intends to appeal to obtain a
stay and extend the detention. Even if the Board of Immigration
Appeals upholds the immigration judge's decision, the INS may
certify the decision to the Attorney General until he has made a
final decision. This may result in the non-citizen's indefinite
continued detention.

Another technique used by Justice to circumvent due process
has been to detain an unknown number of citizens
NOTE 29
and non-citizens as "material witnesses." These detainees need
not be charged with any violations, under the pretext that they
have information relating to the terror attacks. One federal
judge has released such a detainee, a young Muslim male, on the
ground that the detention was unconstitutional,
NOTE 30
but the practice remains unchecked and Human Rights Watch has
identified 35 individuals held as material witnesses.
NOTE 31

To compound the damage already done by closed hearings
and indefinite detention, the Justice Department now permits the
government to eavesdrop on the conversations between lawyers
and their clients in federal custody, including people detained
for immigration reasons but not charged with any criminal
offense, if there is a "reasonable suspicion" that information
might be exchanged that could potentially deter future violent
acts.
NOTE 32

The Bush Administration's "war on terror" has been implemented
domestically by mass detentions of non-citizens conducted
in secret, none of which, to date, has unearthed a link to
terrorism, and by an almost exclusive enforcement focus on
Middle Eastern and Muslim nationals. These have been designated
as "special interest" cases. Even if one may argue that the
detentions were justified because of visa violations, immigration
laws have been used to detain non-citizens so as to bypass
the greater safeguards afforded to people subject to a criminal
prosecution.

The constitutional protections given to people under criminal
law would include a requirement of probable cause for arrest
and the right to court-approved counsel. Prior to September
11, minor visa violations would not have resulted in prolonged
periods of detention. After September 11, the immigration laws
have been used to facilitate a form of preventive detention,
which is to arrest first and investigate later to uncover some
violation. It is generally the other way around in criminal
enforcement -- one can only be arrested after probable cause is
found that the individual was involved in criminal activity. Once
the immigration violation is uncovered, the non-citizen can
potentially be detained indefinitely under the government's
expanded powers. However, the purpose of the detention is not for
the visa violation but to probe into the noncitizen's potential
involvement in terrorist activity or to get rid of the noncitizen
from the country regardless of family ties or citizen children.

Furthermore, since last year, 8,000 young Arab and Muslim
immigrants have been sought for "voluntary" interviews by the
Federal Bureau of Investigation.
NOTE 33
In addition, out of the more than 300,000 foreign nationals who
have remained in this country following a deportation order, the
Justice Department has prioritized the deportation of 6,000
non-citizens from countries where Al Qaeda support is strong.
NOTE 34
And, in its most recent initiative, Justice promulgated an alien
registration rule that would require the registration,
fingerprinting and photographing of nationals or citizens of
Iran, Iraq, Libya, Sudan and Syria.
NOTE 35
Violation of these reporting rules could result in loss of
status, deportation and inclusion in a national crime database.
NOTE 36

What is most remarkable about these administrative rules
is that they have been utilized more frequently and effectively
than the mandatory detention provision in the USA Patriot Act,
which authorizes the Attorney General to detain, without a
hearing and without a showing that the person poses a threat to
national security or a flight risk, non-citizens whom the
Attorney General has "reasonable grounds to believe" run afoul of
the various anti-terrorism provisions of the Immigration and
Nationality Act.
NOTE 37

However, under the Patriot Act, charges must be lodged
within seven days. Not surprisingly, the Bush Administration
has issued new rules for use in the "special interest" cases
giving the Attorney General even broader powers than those
approved by Congress in the Patriot Act. Thus, by executive fiat,
the Bush Administration has circumvented the will of Congress
and arrested non-citizens without bringing charges. None of
these arrests, to date, has unearthed a link to terrorism.
NOTE 38

As of this writing, at the request of certain Members of
Congress, the General Accounting Office (GAO) has begun an
investigation into a number of anti-terrorism measures and their
potential impact on civil liberties, including the detentions
after September 11th, the questioning of the 8,000 immigrant
males, and the monitoring of attorney-client conversations. The
GAO final report will be presented to Congress.

If there is one lesson that should have been learned from
our country's shameful Japanese internment episode during World
War II it is that an enforcement and security policy that
relies on racial stereotyping rather than case-by-case
investigative work is doomed to failure. Profiling is easy and
feels good but has been proven again and again not to be an
effective investigative strategy. Such an approach casts too wide
a net, lulls us into a false sense of security by making facile
assumptions about our enemies, alienates entire communities of
people who could be great sources of intelligence, and erodes our
civil liberties and our constitutional principles.

Courts Have Held the Line on Secrecy

Media groups and other public interest organizations have
challenged the government's secret and indefinite detention
policies in court, claiming a violation of their First Amendment
rights. The initial decisions appear promising, but it remains to
be seen whether the courts will protect those persons who sue the
government individually for violating their rights
NOTE 39
and whether the Supreme Court will rule on these issues. Two
forces are currently militating against the Supreme Court taking
a strong stand against the government on these rights violations.
First, the wartime tendency of the judiciary to defer to the
executive is likely to come into play. Second, under the plenary
power doctrine, courts have traditionally deferred to Congress
and the executive in the exercise of their authority to regulate
the admission and residence of non-citizens in this country.
NOTE 40

Fortunately, in the recent challenges brought by the media,
the courts have rejected the government's arguments justifying
secret detention and closed deportation hearings. Just as General
DeWitt justified the internment of Japanese Americans after
Pearl Harbor with sweeping, unsubstantiated assertions, so too
have FBI officials presented boilerplate affidavits to the courts
to justify the secrecy of these hearings involving Arab and
Muslim non-citizens. They argue in these affidavits that open
hearings could lead to setbacks in the government's terrorism
investigations and stigmatize "special interest" detainees should
they ultimately be found to have no connection with terrorism.
NOTE 41

For the moment, the courts seem persuaded that open hearings
are necessary to ensure governmental fairness given the gravity
of deportation, which can lead to permanent banishment from
the United States, and the fact that non-citizens in deportation
hearings do not have the same level of rights as criminal
defendants. Therefore, media and other public interest groups
may be their only protection against governmental excess.

The most important court decision to have emerged recently
is the Sixth Circuit Court of Appeals decision in Detroit Free
Press et. al v. Ashcroft,
NOTE 42
which recognizes the media's First Amendment right to attend a
deportation hearing of a "special interest" detainee. Without
prior notice to the public, the courtroom security officers
announced that the hearing was closed to the public. The detainee
was denied bail and has been in government custody ever since.
The plaintiffs sued the government in federal district court to
claim a public right of access to the removal hearing under the
First Amendment of the Constitution. The Sixth Circuit Court of
Appeals affirmed the lower court's ruling in favor of an open
deportation hearing. The following introductory remarks of Judge
Keith's opinion, writing for a three-judge panel, are worth
noting:

The Executive Branch seeks to uproot people's lives, outside
the public eye, and behind closed doors. The First Amendment,
through a free press, protects the people's right to know that
their government acts fairly, lawfully, and accurately in
deportation proceedings. When government begins closing doors,
it selectively controls information rightfully belonging to the
people. Selective information is misinformation.
NOTE 43

The court argued that the deferential standard accorded
under the plenary power doctrine to substantive immigration
law does not necessarily apply to non-substantive immigration
law and found the Creppy directive to be non-substantive. Even
if the government presented a compelling interest to close
hearings, the court held that the Creppy directive was not
narrowly tailored, and the government failed to address why it
could not close hearings on a case-by-case basis.

The government's "mosaic intelligence" theory - where an
individual piece of information is not of obvious importance
until pieced together with other pieces of information - was
rejected by the court as being too speculative. The court also
upheld the media's First Amendment access to a deportation
hearing on grounds that deportation hearings have been
traditionally open, and after the massive investigations
following September 11, open hearings serve a "therapeutic"
purpose as outlets for "community concern, hostility and
emotions."

This ruling in the Sixth Circuit Court of Appeals came shortly
after a similar positive ruling from a lower court, in North
Jersey Media Group, Inc. v Ashcroft,
NOTE 44
affirming the media's First Amendment access to a deportation
hearing. The government appealed the New Jersey case to the Third
Circuit Court of Appeals, seeking a stay of the District Court's
order, which was not granted. The government turned to the U.S.
Supreme Court, which, without comment, granted the government's
emergency request for a stay.

In a separate line of attack, several organizations have sued
the government to obtain release of the names of non-citizen
detainees under the Freedom of Information Act. In Center for
National Security Studies, et al v. U.S. Department of
Justice,
NOTE 45
a federal district court in Washington, D.C. held that "secret
arrests are `a concept odious to a democratic society' and
profoundly antithetical to the bedrock of values that
characterizes a free and open one such as ours." It rejected the
government's argument that releasing the names would deter the
detainee from cooperating, hamper the government's investigation,
and allow terrorist organizations to interfere with pending
proceedings by creating false and misleading evidence. The Court
ordered the release of the detainee names as well as those of
their attorneys. However, it upheld the government's request to
withhold the dates of arrests, detention and release, as well as
the location of arrest and detention.

CONCLUSION

Who Will Preserve Our Liberties?

Ethnicity and religion should never be used as a proxy for
individualized suspicion or guilt. Not too long ago, the Supreme
Court in Korematsu upheld an emergency rationale made by
the military to uphold the exclusion of citizens and immigrants
of Japanese ancestry from the West Coast. To the nation's great
embarrassment, military "justification" was found to be
racial prejudice and government misconduct. Despite the pressure to
ratify government action at times of conflict and crisis, the
judiciary must not allow our nation to commit such acts of
deprivation against American residents by virtue of their nations
of origin or religious beliefs.

As the Detroit Free Press case makes clear, courts will
scrutinize the non-substantive aspects of immigration law, such
as the Creppy directive, and will strike some of them down as
unconstitutional. To date, lower courts have been curbing the
egregious enforcement excesses of the Bush Administration. In
defending its enforcement powers, the government can use national
security arguments or the plenary power doctrine to justify its
rules and policies over non-citizens. It is time to cast aside a
doctrine which gives the government unreviewable power over
immigration matters,
NOTE 46
was first formulated for use against Chinese immigrants more than
a hundred years ago,
NOTE 47
and was reaffirmed during the McCarthy era.
NOTE 48

But can we trust the Supreme Court to uphold these lower
court rulings? Chief Justice Rehnquist, in All the Laws But
One: Civil Liberties in Wartime, suggests that while the
internment of citizens of Japanese ancestry may not have been
justified, the internment of Japanese immigrants may have been.
He cites a little known law enacted in 1798, the Enemy Alien Act,
which authorizes the President, during a declared war, to detain,
expel, or otherwise restrict the freedom of any citizen 14 years
or older of the country with which the United States is at war.
While these are only the Chief Justice's private reflections in a
history book, and the war on terrorism remains an undeclared war,
it is hoped that Chief Justice Rehnquist and his colleagues will
follow a long line of judicial precedents after 1798 that have
recognized the due process rights of non-citizens living in the
United States.

We learned from the Japanese internment experience that
unquestioned judicial deference compounded grievous errors.
Armed with that knowledge, today's courts must not allow the
government's sweeping rhetoric regarding national security to
be used to curb non-citizens' liberties without uncovering the
facts, and any prejudice, behind the rhetoric. The government
must present a compelling case against specific individuals,
whatever their ethnic or religious background, suspected of
terrorism, rather than engage in over-inclusive roundups of
"enemy aliens" and persons of "suspect nationalities."

This paper is authored for the American Immigration Law
Foundation by Stanley Mark, Suzette Brooks Masters, and Cyrus D.
Mehta. The views expressed are those of the authors and do not
necessarily reflect the position of the Foundation.

ENDNOTES

Stanley Mark is Program Director at the
Asian American Legal Defense and Education Fund (AALDEF). He has
represented and assisted Japanese Americans asserting claims for
redress compensation, and has testified before the U.S.
Commission on Wartime Relocation and Internment of Civilians.
Suzette Brooks Masters is a senior program officer at the
International Center for Migration, Ethnicity and Citizenship at
New School University. She serves on the board of directors of
the National Immigration Forum and the Lower East Side Tenement
Museum and writes frequently on immigration topics. Cyrus D.
Mehta practices immigration law in New York City. He is First
Vice Chair of the American Immigration Law Foundation and chair
of the Immigration and Nationality Law Committee of the
Association of the Bar of
the City of New York.

Within three weeks of the September 11 attacks, more than
200 incidents of anti-Asian violence were reported to
AALDEF.

William Rehnquist, All The Laws But
One: Civil Liberties in Wartime, 1998, Chapter 18.

Christopher Edley, "A U.S. Watchdog for
Civil Liberties," The Washington Post, July 14, 2002
at B7. See also, Christopher Connell, Homeland Defense and
Democratic Liberties: An American Balance in Danger? Carnegie
Corporation of New York, 2002, page 9.

7 Fed. Reg. 1407.

The term "concentration camp" has also
been used in describing the internment camps. It was used by the
Joint Chiefs of Staff in a classified memo dated February 12,
1942 and in other documents. Michi Weglyn, Years of Infamy
(New York, 1976), page 175.

About two thirds of those interned were
American citizens.

Significant numbers of Japanese laborers
immigrated to the United States in the 1890s to work in
agriculture, mining and railroads. By 1909, 40% of California's
agricultural workforce was Japanese. Carey Mc Williams,
Prejudice: Japanese Americans-Symbol of Racial Intolerance
(Boston: Little Brown, 1944). Japanese immigration was restricted
in 1907 and, by 1924, the Japanese were barred entry to the
United States as "aliens ineligible for citizenship." Immigration
Restriction Act of 1944, 43 Stat. 153. It was not until 1952 that
the Japanese were permitted to become US citizens and until 1965
that Asians were granted the same immigration privileges as
Caucasians. These restrictive immigration laws laid the
groundwork for discriminatory state legislation that prevented
foreign born Japanese from owning land, possessing firearms,
procuring fishing licenses, and holding government jobs. The
Supreme Court finally overturned these restrictions in 1948 in
Oyama v. California, 332 U.S. 633, and Takahashi v.
Fish and Game Commission, 334 U.S. 410.

Public Law 77-503, 56 Stat. 173, 18
USCA 97a.

General DeWitt, the designated Military
Commander of the Western Defense Command, issued Public
Proclamation No. 1 pursuant to Executive Order 9066, which stated
that "the entire Pacific Coast_subject to espionage and acts of
sabotage, thereby requiring the adoption of military measures
necessary to establish safeguards against such enemy operations."
Thereafter, several other proclamations were issued, including
Exclusion Order No. 34, providing that all persons of Japanese
ancestry be excluded from areas specified as Military Area
No. 1.

General John L. DeWitt, the military
commander in charge of the Western Defense Command, wrote and
issued the Final Report to support military necessity and an
indefinite detention policy. His recommendation constituted the
factual basis for detaining both U.S. citizens and resident
aliens of Japanese ancestry. He made the following statement in
the Final Report: "The Japanese race is an enemy race and while
many second and third generation Japanese born on United States
soil, possessed of United States citizenship, have become
`Americanized,' the racial strains are undiluted... It therefore
follows that along the vital Pacific Coast over 112,000 potential
enemies of Japanese extraction are at large today." See Final
Report of General John L. DeWitt, quoted in Jacobus ten Broek,
Edward N. Barnhart & Floyd W. Matson, Prejudice, War and the
Constitution 110 (1954).

Id. at 1417 (citing Personal Justice
Denied, which presents the findings of the Commission on
Wartime Relocation and Internment of Civilians).

Adam Liptak, Neil Lewis & Benjamin
Weiser, "After September 11, A Legal Battle On the Limits of
Civil Liberty", New York Times, August 4, 2002.

66 Fed. Reg. 48,334 (September
20, 2001), amending 8 CFR 287(3)(d). The 48 hour rule im-properly
reads the case law as allowing for 48 hours regardless of special
circumstances. County of Riverside v. McLauglin, 500 U.S.
44 (1991). Procedures still may be deemed unreasonably delayed,
even if charges are brought within 48 hours if, for example,
there are "delays for the purpose of gathering additional
evidence to justify the arrest, a delay motivated by ill will
against the arrested individual, or delay for delay's sake." Id.
at 56.

8 C.F.R. Section 236.6 (Fed.
Reg. 19508 (Apr. 22, 2002). In ACLU of New Jersey v.
County of Hudson, 2002 WL 1285110 (NJ Super. A.D. June 12,
2002), the NJ Superior Court held that the federal rule preempted
any inconsistent New Jersey state public disclosure laws under
the federal preemption provision of the US Constitution, Article
6, which declares that "the laws of the United States ...shall be
the supreme law of the land...anything in the constitution or
laws of any State to the contrary notwithstanding."

66 Fed. Reg. 54,909 (Oct. 31,
2001).

It should be noted that this article
has focused primarily on the legal issues surrounding the
treatment of non-citizens. It has not addressed the use of
military tribunals or the rights of U.S. citizens who are
designated as "enemy combatants" such as Padilla and
Hamdi.

66 Fed. Reg. 55,062 (Oct. 31,
2001). This rule has been criticized by the Ethics Committee of
Association of the Bar of the City of New York in that the
requirement of a judicial finding of probable cause should not be
replaced with an executive finding of reasonable suspicion in
allowing the attorney/client privilege to be breached. See The
Record of the Association of the Bar of the City of New York,
Vol. 57, No. 3, Summer 2002.

See Memorandum For All United States
Attorneys, All members of the Anti-Terrorism Task Forces From the
Deputy Attorney General: Guidelines for the Interviews Regarding
International Terrorism, dated November 9, 2001, posted November
27, 2001, at:
www.detroitfreepress.com/gallery/2001/interviews/01memo1124.htm. See also, criticism of program, e.g., in William
Glaberson, "A Nation Challenged: The Interviews: Legal Experts
Question Legality of Questioning"; New York Times,
November 30, 2001, at B6.

Id. In its comments to these rules, the
American Immigration Lawyers
Association (AILA) stated, "Terrorism is not tied to a
nationality. It is not even tied to the omnipresent `alien.' It
is tied to an ideology of hatred and destruction. To link Special
Registration to nationality pro-motes the simplistic and
dangerous view that our enemies in the war on global terrorism
are cloaked in the guise of a passport or a stated place of
birth."

Section 412, USA Patriot Act of October
2001 (Public Law 107-56).

See Human Rights Watch report, page
4.

See Complaint filed on April 17, 2002,
in Turkmen v. Ashcroft, 02-CV-02307-JG (E.D.N.Y 2002),
available at news.findlaw.com/hdocts/docs/terrorism. Turkmen, a Turkish national, was
given voluntary departure on October 31, 2001, but was kept in
custody for nearly four months, until the FBI ensured he was
innocent.

See, United States ex. Rel. Knauff
v. Shaughnessy, 338 U.S. 537 ("whatever the procedure
authorized by Congress is, it is due process as far as an alien
denied entry is concerned"); But see, Zadvydas v. Davis,
533 U.S. 678 (2001), where the Supreme Court held that "the Due
Process Clause applies to `all persons within the United States,
including aliens, whether their presence is lawful, unlawful,
temporary or permanent."